Hearsay battle in Will County

One expert's take: 'It's a miscarriage of justice'

Drew Peterson's hearsay hearing has taken Illinois criminal law into uncharted territory, a path that has sparked a lively -- and sometimes angry -- debate in the legal community as the prosecution nears completion of its portion of the landmark proceeding.

"It's a miscarriage of justice," said Leonard Cavise, a DePaul University law professor. "This hearing is not how the American judicial system is supposed to work. It's ridiculous."

Nearly 70 witnesses have been called in the unprecedented hearing in which a Will County judge will decide whether hearsay statements condemning former Bolingbrook police Sgt. Peterson for the March 2004 death of his third wife, Kathleen Savio, are trustworthy enough to be admitted into trial.

The prosecutors are relying on a new Illinois statute, dubbed "Drew's Law," that allows them to build their case around comments made by Savio and Peterson's fourth wife, Stacy, who vanished in 2007.

Prosecutors are focusing on 15 so-called hearsay statements, which they say will give the women a voice from the grave. In order to prove the hearsay's reliability, however, the prosecution had to show most of its hand at a pretrial hearing, a move that gave the public its first glimpse at the state's case.

The case, so far, seems underwhelming, some legal experts say. None of the evidence physically tied Peterson to the crime or put him inside Savio's house the weekend of her death. Illinois State Police have admitted they, at best, blundered Savio's death investigation and collected no evidence from the scene.

So far, at least eight witnesses -- including her two sisters, boyfriend and co-workers -- have testified that Savio told them Peterson broke into her home in 2002, held a knife to her throat and threatened to kill her. Savio's divorce attorney testified that Savio told him Peterson often threatened to kill her and make it look like an accident. And Stacy Peterson's aunt recalled hearing Drew Peterson, then 54, apologize to his young wife for "burdening her with his past."

Some witnesses also bring credibility concerns with them to the stand, such as a self-described psychic who says she hears voices from God and a sister of Savio's who said she has signed a five-figure book and movie deal.

"I would be reluctant to let some of that stuff in because it's dangerous on appeal," said Terry Ekl, a defense attorney and former prosecutor. "I'd be cautious about using it."

But other attorneys said State's Attorney James Glasgow is obliged to use the legal means available. "If I were the prosecutor, my attitude would be the rule of law is there ... and if it's a weapon I'm able to use, I'm going to use it," said Mark Rotert, a former state and federal prosecutor now in private practice. "He's only using the tools that the law provides to him. People can argue when those tools were put in his toolbox, but those are policy and constitutional questions he should not spend a lot of time on."

Judge Stephen White is presiding over the hearing, which has drawn the attention of attorneys across the state, with lawyers popping into his Joliet courtroom to watch the proceedings.

Legal experts describe White as "well-schooled" and "extremely competent." But he has no road map in which to follow.

The judge has banned one potentially damaging statement from the trial. He ruled that marital privilege prevents Stacy Peterson's former pastor from testifying that she told him that her husband confessed to killing Savio.

The statement's exclusion is a victory for the defense, though White still may allow the minister to testify that Stacy Peterson lied to police about Drew Peterson's alibi and that she saw him come home at night wearing dark clothes the weekend Savio died.

"I think that the prosecution has a difficult case because they have -- according to their case in their best light -- an inept investigation and a bunch of hearsay statements, which by law are usually unreliable -- a bunch of rumor and innuendo," defense attorney Steve Greenberg said. "The law disfavors convicting someone because he's a bad person, and that's really all they've got here."

In judging whether the statements meet the standard of trustworthiness, White must consider the motives of Savio and Stacy Peterson for sharing their accounts with people, experts said.

Was Savio, as friends and family contend, so terrified Drew Peterson planned to kill her that she wanted to make sure he was held responsible in the event of her death? Or was she, as the defense suggests, angry at Peterson for finding a much younger woman and moving on with his life?

"Two people who are going through a terrible divorce can say a lot of terrible things about each other that aren't true," Ekl said.